Immigration Issues/Re-filing H-1B after COS denial

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Expert: Ramasamy Krishnan - 8/28/2007

QuestionQUESTION: I filed for a COS from F-1 to H-1B but was denied on CAP GAP grounds (no status between OPT expiration and Oct 1st). Their reasoning was wrong since i DID have status during that time (I went back to school, valid I-20 till December). Instead of filing for an MRT, I am thinking about re-filing for H-1B with premium processing to get an answer before Oct 1st. I WAS granted H-1B approval so I'm part of the cap. Is it a good idea to do so? Will it work? Please comment.

ANSWER: Haider: You state that your COS to H was denied and later below you state that you were granted H approval. I assume that you had an H prior to your F status, if that is so, I do not see any issues with you applying again. It surely will work if you are eligible.

QUESTION: Thanks for your prompt response. I meant that my H-1B change of status was denied but h-1b was approved; meaning, I recieved the approval notice without the I-94 cards. To get the H-1b i have to leave the country while I'm trying not to do that. So I have been on F1 all this time.

AnswerHaider: OK I get it. The COS component of your H petition was not approved. I think that you can reapply since you have already been counted within the last six years therefore cap exempt. But I would advice that if you reapply,you carefully document that you were maintaining status all through your stay in the US.
Sincerely,
Ramasamy Krishnan
Attorney at Law
Ashley & Krishnan
9801 Westheimer, suite 302
Houston, TX 77042
www.ashleykrishnan.com

Ramasamy Krishnan

Expertise

Immigration particularly business immigration and National Interest Waivers.

Experience

I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan, www.ashleykrishnan.com